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What are current immigration options for inventors, entrepreneurs and founders of start-ups?

Foreign entrepreneurs investing in start-ups and new operations in the United States are confronted with limited choices when it comes to entering the US to create jobs and invest in the US economy. While investors can enter the US as visitors to conduct market research, enter into contracts and engage in some business-related activities, they are not allowed to engage in traditional employment. Once enough money has been invested, some foreign investors can obtain temporary E investor visas, but only if they are citizens of a country that has signed the requisite treaty with the United States and they meet other requirements.

If the new US entity is related to a foreign business and the investor has worked at least one year abroad, the L intercompany transferee visa may also be available. In practice, E and L visas usually require a “substantial investment” and/or that the business is sufficiently operational before a visa can be approved. As a result, immigration laws far too often deter foreign entrepreneurs from creating jobs and investing in the US economy.

Foreign investors who invest at least $500,000 in the US economy and meet other requirements can apply for an EB-5 green card, but this process often takes a long time, requiring delays in the investment and keeping the person from immediately travelling to the US. In addition, the process is often very burdensome, resulting in foreign investors choosing to invest in other countries rather than in the US economy.

What changes are proposed to help investors, researchers and entrepreneurs?

On November 20, 2014, DHS Secretary Jeh Johnson directed USCIS to implement two major changes that are intended to provide foreign inventors, researchers, and founders of start-up enterprises with more flexibility when it comes to investing in the US economy.

Secretary Johnson specifically directed USCIS to take the following steps:

(1) USCIS shall issue guidance or regulations expanding the use of the “national interest waiver” to include employed entrepreneurs, researchers and innovators. Businesses that are engaged in research and development will be able to apply for a national interest waiver, instead of using the PERM Labor Certification process, if they can demonstrate that the US economy will benefit through job creation as a result of that applicant’s exceptional ability.

(2) USCIS shall issue guidance and regulations to allow the temporary, paroled entry of inventors, researchers, and entrepreneurs who may not yet qualify for the national interest waiver green card, but who:

  • Have been awarded substantial U.S. investor financing
  • Otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting edge research

Existing immigration law includes parole for those who will provide “significant public benefit.” This form of parole will be expanded to explicitly include individuals coming to “pursue research and development of promising new ideas and businesses in the United States, rather than abroad.”

When will the changes for investors and entrepreneurs take effect?

These changes are currently under development. Since some of the proposed changes likely require a change to existing immigration regulations, those changes will likely to take effect in late 2016 or 2017.